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When Israel’s Supreme Court approved of the override clause

9 Sivan 5778 | 23 May 2018

It was Justice Aharon Barak who came up with the creative solution to let the law against the import of non-kosher meat pass. Despite the fact he himself deemed the law unconstitutional, the Knesset, he suggested, should amend the basic law on freedom of occupation by adding an article stating that the Knesset can pass an unconstitutional law

Israel’s public debate (or, rather, war of empty slogans) on the proposed “override clause” (which would enable the Knesset to re-legislate laws struck down by the High Court of Justice) is missing the elephant in the room: the override clause already exists in Israel, and it was proposed by the Supreme Court itself.

Israel does not have a constitution but only basic laws. Two basic laws (“human freedom and dignity” and “freedom of occupation”) were passed in 1992. Those basic laws do not empower the High Court of Justice to strike down regular laws, but they do state that Knesset legislation cannot contradict basic laws.

In 1993, the High Court of Justice announced that it would strike down any law inconsistent with the basic law on freedom of occupation. The reason for this announcement was that the High Court had been petitioned following a government decision to ban the import of non-kosher meat. The High Court ruled that, were the Knesset to pass a law against the import of non-kosher meat, the law would be stroke down for being inconsistent with the basic law on freedom of occupation. This decision was likely to bring down the coalition government of Yitzhak Rabin, because the Shas party (a key coalition partner) threatened to topple the government over the import of non-kosher meat.

Justice Aharon Barak came up with a creative solution to let the law pass, despite the fact he himself deemed the law unconstitutional: the Knesset should amend the basic law on freedom of occupation by adding an article stating that the Knesset can pass an unconstitutional law (i.e. a law that contradicts the basic law on freedom of occupation) on condition that the unconstitutional law be valid for a period of four years only. The Knesset did amend the basic law of freedom of occupation according to Barak’s recommendations. It then passed a law forbidding the import of non-kosher meat, and the High Court did not strike it down.

Barak’s recommendation was inspired by Canadian constitutional law. The Canadian constitution has an override clause which states that when the Supreme Court strikes down a law, parliament can pass it again for a (renewable) period of five years. In Britain, there is no such need for override since the Supreme Court cannot strike down laws deemed unconstitutional but can only recommend their amendment by parliament.

Other western democracies give less leeway to the legislative branch. In France, the constitutional council (Conseil constitutionnel) can strike down unconstitutional bills before they are passed by parliament (a priori judicial review). Since 2010, France’s two supreme courts (the Cour de Cassation and the Conseil d’État) can strike down unconstitutional laws even after being passed by parliament (a posteriori judicial review). In France, however, the right of courts to strike down laws is granted by the law itself.

In Israel, by contrast, the right of the High Court of Justice to strike down laws was granted to the court by the court itself (in a 1995 ruling by -guess who- Aharon Barak). The same court that approved the override clause in 1994 for the basic law on freedom of occupation says today that it won’t approve the override clause for the basic law on man’s freedom and dignity (which is what the government is trying to do in order to jail illegal immigrants or to send them back to their countries). The court, in other words, has a selective way of approving of the override clause (in 1994, it did so to save the government of Yitzhak Rabin). Could it be that there is a hierarchy between basic laws? This is what the court’s double-standard seems to imply, though it does not say so.

After 70 years of independence, the time has come to have an agreed, written, and precise system of checks-and-balances between the three branches of government. The current system is not balanced, and it is not the result of a constitutional debate. An agreed-upon system of checks-and-balances is long overdue. It may or may not include the override clause, but those who claim that override is undemocratic imply that Canada is not a democracy. Admittedly, Israel should not only learn from other democracies’ constitutional law but also be inspired by their political manners. But it is for the vocal critics of the override close to explain why they supported it to import non-kosher meat but oppose it to send back illegal immigrants to their countries.